Since the initial days of Islam, Muslims kept on following fatwas believing it to be their religious duty as complements to Allah's commandments. And to fulfill this need of Ummah there has been a leading group of prominent personalities who went on issuing fatwas on the basis of Qur'an and sunnah since the early stage of Islam.
Nowadays there are two groups of people who find places in media headlines: one group that issues fatwas and the other which comments over fatwas. The purpose of first group is to make explicit that is to guide people towards Allah's command and trying to prevent them from going astray. And the aim of the later one is, none other than two, either they do not believe in Almighty's ruling, they have an issue with the very existence of Islam, thus they move heaven and earth to make their personal outrage known to others. Or they are under pressure for worldly reasons, thus they knowingly and unknowingly present tendentious arguments to show Islam, Muslims and those who are respected in Muslim society in bad-light.
In the views of a noted trend-watcher, Santosh Desai: "Morality itself is a more cumbersome and distressingly permanent set of codes and conventions from which there is no easy escape. Morality calls for permanence of memory and constancy of rules. It needs us to be resolute and measure ourselves against those that have fallen; morality tests us as much as it tests the others and this is difficult and exhausting. Outrage is a product that we can pick off the shelf, consume and throw away. It is an enactment of morality; a gesture that is imbued with moral considerations, but that is donned for a while and discarded". But in the outrage against fatwas, and here I disagree with Desai, there is no moral underpinning but it only a means to create mass hysteria for the sake of eyeballs in the TV channels and print media.
At present time there is a widespread discussion on fatwa, its need, its legal value and the actual addressee of it. Most of the participants in it are mostly illiterate when it comes to Islamic knowledge. This attracted me to clarify the issues and the reality of fatwas and the aspects related to it.
A fatwa is a legal opinion issued by an expert of Islamic jurisprudence (mufti) demonstrating a ruling within Islamic law based on evidence as a response to a question.
Fatwa is clarifying Islamic ruling regarding a specific event. Therefore it is different from the fiqh (jurisprudence). It also differs from the judgment given legally by a Qazi (judge).
In Islam, fatwa is such a serious matter that a mufti is not allowed to issue fatwas when his situation is not normal. When a mufti is angry, hungry, thirsty, sad, extremely happy, dozing, suffering from terminal illness etc. he is directed to avoid delivering fatwas. In the same way, it is forbidden for a mufti to take any fee from a questioner (mustafti) though the mufti is down and out and has no other occupation. And if he has any source of livelihood then he cannot take any kind of remuneration for fatwa even from government or any institution. This is possibly because he should not be involved in any sort of bribe. (Rasmulmufti page: 14-15)
What is the difference between fatwa, fiqh, and judgment? Fiqh has only one element, knowledge of the practical legitimate judgments derived from their detailed evidence. So, it is the science which is derived from the (nas) or detailed evidence from the Qur'an and Sunnah.
The one giving a fatwa should have sound knowledge of Islamic rulings.
There are five categories of rulings: obligatory, recommended, forbidden, undesirable, and allowed.
The subject of the science of fiqh is human behaviour. Every human action has a ruling. Rulings are five: obligatory (farz, wajib), recommended (mustahab), forbidden (haram), undesirable (makrooh), and allowed (jaiz). The action together with one of the five rulings forms a sentence. So, when we say, 'theft' then we say, 'is forbidden'. Hajj is obligatory for whoever affords it. Fasting in Ramadhan is obligatory for those who can bear it. It is obligatory for the woman not to fast during menstruation and after giving birth. She then makes up for those days later.
On the contrary, a fatwa would consider the practical aspects of an issue and how the Islamic ruling is perceived by the subject. How to apply the legitimate Islamic text to a particular case on hand is the subject matter of fatwa. Thus, we can say that the elements of fatwa differ from fiqh itself.
A mufti should be a jurist, who is aware of the reality of the case. He should know how to apply the absolute, which is the legitimate text, which extends beyond time, place, people, and circumstance to the reality before him.
A person cannot be a mufti by mere knowledge of the Islamic texts or teaching it to others. Nevertheless he can be a jurist, a scholar by virtue of his knowledge. For, he might be unable to perceive the reality of a particular case. Thus a mufti is required to have practical knowledge of the case on which he is about to deliver his verdict.
Shariah does not contradict itself
When a mufti deduces rulings, he considers the present need of the society in accordance with the Islamic teachings. He sees if we apply this ruling in the present case, would this contradict with the aims of Shariah (Islamic law)? If he finds any contradiction, he should begin a new process of deduction and application, until he figures out where the defect is. This is because Shariah does not contradict itself nor it is against common human interests.
A defect is possible in the verdict of a particular mufti. And this defect would certainly be because of a different comprehension of a particular Islamic text. One mufti may perceive mere apparent meaning of a text or that he may have considered one part and neglect the other one. Similarly he might have disregarded the actual outcome of the text or differed with the consensus of scholars or deviated from words' implication in Arabic language. Or that he, at the first time, didn't consider the wisdom behind a certain issue, which Shariah considers, or he missed the aims that Shariah commands us to follow. Thus a defect is subject to understanding of a particular mufti not because of contradiction among Islamic texts.
When a mufti finds that applying his fatwa will badly affect the aims, wisdom or the spirit of Shariah, he then has to reconsider his verdict afresh.
Difference among Fatwa, Fiqh and Qaza
Fatwa is an independent ruling based on three elements— deduction of rulings, awareness of facts, and establishing a connection between them.
Fiqh consists of one element and that is deduction of rulings from original texts.
Qaza (Judgment) is an authoritarian verdict which must be in accordance with Shariah teachings. Thus, if a judge's verdict violates links between Shariah and fact or it goes against scholar's consensus, it becomes null. Nevertheless, a judge's verdicts are applicable on all unless it is clearly proven by a similar authority as against Shariah. It must be noted that a judge has been entitled with special power by Allah and Islamic Shariah to enforce his verdict while establishing peace and justice on earth.
Muftis cannot impose verdicts on people– only judges can
According to Islamic law, if the plaintiff and defendant went to the mufti and he gave them a fatwa to get divorced for example, and the husband was not convinced and said, 'no, she is still my wife, and you, mufti, are mistaken in your fatwa.' The mufti then cannot compel him to abide by his fatwa. In the same case a judge can impose his verdict on the husband and even impose punishment if any party goes against his decision. A judge is an authority to impose his decision on people and the mufti is not.
The judgment of a country where Islamic system of governance is not in operation is obligatory on Muslims to abide by unless it does not contradict the Shariah. Because as a citizen of the country they are required to follow the rules framed for people. So not to abide by country's rules is like breaking the pledge, which is strictly prohibited in Islam. (Muslim Hadith No.58)
To explain clearly how fatwas are related to a person's unique situation, there is an incident of a pious lady who used to sew clothes in the street lights while on the top floor of her house. This happened many years ago in the Middle East. She asked her maid to ask the mufti if it was alright to use the street lights to do her work at night, but she insisted that the maid not reveal her name. When the mufti was asked the question, he said, "Who is that lady?" The maid replied that she asked that her name should not be disclosed. The mufti said that 'I cannot give the ruling unless I know the name of the lady." The maid repeated the incident to her madam and got permission to reveal her name.
When the mufti was told that the lady was the sister of a well known holy man, he replied: "It is not proper for her to sew clothes under the street lights. But ordinary people are allowed to do so." This incident points out clearly the fact that fatwas given are unique to a person's status and his religious station in life. They cannot be generalized for everyone all the time.
Having explained the position of fatwa and difference between fatwa and judgment, I think, there is no need to explicate more about the fact that issuing fatwa is not against the spirit of democracy.
As soon a fatwa is issued some Muslims, deprived of Islamic knowledge start criticizing it. To further complicate the matter, the Hindutva lobby begins to use the fatwa as an excuse to step up its campaign for the abolition of Muslim personal law and find the anti fatwa campaigns as ready-made weapons.
Some infamous 'scholars' even published books against fatwas – 'The World of Fatwas' just to name one. The book was authored by an extremist journalist Arun Shourie whose Muslim enmity is earlier proved as he started crusade in 1981 against Abdul Rahman Antulay, the then Chief Minister of Maharashtra, which caused his eventual resignation.
And making matters even more messy, sections of the mainstream media, ever on the prowl for stories of 'oppressed' Muslim women as a stick to beat Muslims with, would seek to sensationalize the issue all out of proportion, presenting the fatwa as further 'evidence' of the unrepentant 'obscurantism' of the Muslim ulama.
Diversity of views among the 'ulama of different schools of thought on matters of Islamic jurisprudence is not a germane to the issue but what matters is to speak unnecessarily against others' school of thought and to humiliate the rivals as some turncoat ulama do, who never miss the chance to join the fray in critiquing Deoband' s fatwas.
One such case is of ‘Mufti’ Mukarram an imam of Delhi based Fatehpuri Masjid who is, in fact, an aamil by profession (who exorcise) and has a clinic for this purpose. Neither he got the knowledge of Islamic jurisprudence nor currently he is in fatwa work, but he is never behind any one to launch cannonades over fatwas when it comes from non-Brelvi ulama.
Nowadays he is a part of acrimonious debate of 'Wahabism and Hindu culture-dominated Islam'. He blames Darul Uloom Deoband that "Its muftis work as pied-pipers of Saudi-sponsored Wahabism." While Arshad Alam, a professor of Jamia Millia Delhi and author of a book "Inside a Madrasa: Knowledge, Power, and Islamic Identity in India" takes part in the debate answering the question 'What is the background of this debate':
"In India, the British first used the term Wahabi for Muslims who declared jihad against them. The Deobandies were alleged to be Wahabis because they were against syncretic practices such as visiting shrines.
Defending some of these practices was Ahmad Raza Khan, who justified the importance of shrine and pirs. The Barelvi identity crystallized around the writing of Khan. And it is proved by history that Muslims were in two groups in British era; the majority was against capitalism of British while a group of Muslims was loyal to it."
The same situation is now persisting, according to a TOI report. "As the Taliban and fundamentalists professed Deobandi ideology, the US has used Sufi Islam (Brelvies) as a force to counter terrorism (Muslim Mujahideen). Since 2001 the US helped Sufism by giving more than $1.5 for the restoration and conservation of Sufi shrines in Pakistan".
Now ‘Mufti’ Mukarram should answer the question whether pied pipers of Saudis, the citizens of the city of Prophet (saws) are trustworthy or those who are loyal to the British and breathing under the US favors?"
There are some self-declared Muslim intellectuals who claim a new Muslim leadership is today in the making, one that is sensitive to the real-world concerns of questioners' situation. In other words they wish to say that they themselves are the real deciders of muftis, though never thought to seek Islamic knowledge in their lives.
Except this, there are a few so called Muslim faces who have nothing to do with fatwas but to please their non-Muslim lords or to get fame and popularity in the sight of Muslim enemies or to be called 'liberal', they always oppose fatwas and try to diminish the reputation of Islamic seminaries.
Among fame-hungry people who to try to get cheap publicity, made the purpose of their lives to speak and write against Islam, are Salman Rushdie, Taslima Nasreen and likes. However, they are open in thoughts but there are some other clones within our near and dear ones who are not leaving any opportunity to defame Islam, Islamic madaris or Islamic traditions, to name a few, one must be vigilant enough to check the writings and views on recent media from people like Muhammad Wajihuddin, Javed Akhtar, Asghar Ali Engineer, Arif Mohammad Khan and Union Minister Dr. Farooq Abdullah.
Mr. Wajihuddin, a media person, is supposed to be a very cautious and responsible man while using the right to freedom of expression, but instead he has chosen to exploit it for his own gain and fame?
Javed Akhtar is a lyricist and had been for a long time in Bollywood, born a Muslim, but later became an atheist as he has stated in his speech "Spirituality, Halo or Hoax". He, many a time, tries to make innocent Muslims go awry like himself. For this purpose he bluntly criticizes fatwas and ulama.
Asghar Ali Engineer is the head of a little known institute 'Institute of Islamic Studies'. Born in Rajasthan as the son of a Bohra priest, is also among those who commonly try their best to prove themselves over-liberal and constantly criticize fatwas without understanding them. Compelled by his habit of irresponsible criticism, he was expelled from Bohra community in 2004.
Professor Tahir Mahmood is proud enough to have some Muslin personal law knowledge. He insists that Muslim matters cannot be decided by 'ancient juristic wisdom' laid down 'by some religious jurists of Arabia over a thousand years ago'. If they cannot be decided by faqhi tenets which are derived from the Qur'an and Sunnah, then they would be solved by a professor's theory who works as a cheer leader of the government?
Zafar Iqbal, a frequent contributor to several Muslim internet discussion groups, accuses the muftis that they have issued their fatwas with double standards for men and women. When Allah created men and women physically different then their duties, rights and living methods also must be dissimilar. But who will make these kinds of 'intellectuals' understand who insist on giving fish and goats the same rights, the same duties.
Wahiduddin Khan is an editor of a monthly magazine Al Risala, and a beloved Muslim face of Hindu and Jew extremists as he is very often seen with RSS and Bajrang Dal leaders in their meetings, at some time visiting Israel for reasons best known to him.
Wahiduddin Khan makes the wrong claim that muftis issue fatwas to "garner cheep publicity" and termed it "fatwa activism." Being a maulana he forgot that to make fun of Islamic "shiar' or signs is a serious lapse in Islam.
Arif Mohammad Khan is a known Islam basher. Dr Farooq Abdullah has recently stated in a TV interview that 'Madrasas have only taught nafrat (hate) in last sixty years' and they must be either shut down or closed forever in India.
We got to know that fatwa-critics are either far from Islam or their hunger for fame compels them to be pusillanimous and compromising on the basic tenets of Islam, or they are under the pressure of their non-Muslim lords.
Before you trust in any one, you must try to scrutinize his background as Allah (swt) orders in the glorious Qur’an "O ye who believe! If an evil-doer brings you tidings, verify it, lest ye smite some folk in ignorance and afterward repent of what ye did". (Surah Al Hujrat: Ayah No: 6)
Responsibility of a Mufti
It is very regretful that many people have gone to extremes; they either cross the boundaries or they fall short. This portrays Islam as if it is a cramped courtyard or it does not possess an established system. Both these groups have provoked turmoil and dissention amongst the Muslims. Holding to the golden mean that makes distance from both types of extremes is the only wise option open for all.
In Islam, a mufti is not one who makes the laws. Rather he is merely one who explains what Allah has made as law in His Book or in the Sunnah of His Prophet (saws) and he explains what is established in the Shari'ah over the centuries.
In the words of 'Allamah ibn Qayyim al Jawziyyah (rah): He is one who signs on behalf of Allah (swt). Thus, it is not permissible for every Tom, Dick and Harry to issue fatwa, as it is a great responsibility which can only be fulfilled by a person who has gained in-depth knowledge of the Islamic fields of knowledge such as tafseer or exegesis., hadith, fiqh (jurisprudence) and 'aqaid (beliefs) and he learnt the principles of these sciences at the hands of expert teachers. Such knowledge, by all means, is pristine and pure, although it carries the distillation of centuries with it.
Similarly, it is necessary for one who adopts the responsibility of ifta to have a full understanding of the conditions of the people of his time as well as of their traditions and practices. (Aadabul mufti of Navavi 1:647 and Sharha Uqud Rasmul Mufti in Rasail ibne Aabdeen1:15)
Mufties should check if any fatwa is about to scatter the unity of Muslims, if they fear, they should not generalize their fatwas. Moreover, mufties can deliver fatwas orally to the particular questioner instead of written answer if a possibility of misunderstanding arises among the common mass. As Abdullah Ibne Maso'od one of the greatest jurisprudents among sahaba says: "He who gives fatwa over every question, whatever is asked, is a mental case."
Muftie should know the plot of enemies who keep on checking Darul-Ifta sites for their malicious aim and sometimes send their fake questioners to Darul Iftas with controversy-making issues. So, muftis in general, ought to avoid posting all kinds of fatwas on their websites. 'Because those who do not know the practical ramifications of any problem of the age is an ignorant in the sight of fuqha let alone being an authentic mufti'. (Sharha Uqud Rasmul Mufti page: 158)
Fatwas, in the true sense, are not a matter of personal predilection but when any mistake is pointed out to the mufti by an authentic source, he should coolly re-examine the issue and accept it if it is wrong. If he still decides after pondering on it that it is correct, then the person who has asked the question should also accept the ruling in good grace and with equanimity and act upon it. The second point is that fatwas are foci of personal problems and dilemmas, and they can be understood and clarified only in the light of a person's unique situation. They cannot become fodder for the media to jump into the fray to decide the right and wrong of it. It is just as when a doctor is operating on a patient, some onlookers force him to adopt another thing, and following this would ruin the life of the patient.
The true God-fearing muftis are a link between the vox populi and the quintessential message of the Qur'an and hadith. They with their deep and profound knowledge of the "azeemat" (high point) and "ruksat" (low point) (given for the ease and convenience of the followers) of the Qur'an bring the holy book and the ahadith close to the lives of the Muslims who want a guiding light to show them the way through the shoals and promontories of life so that they can traverse on the right path that leads to Almighty Allah.